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The US Office of Civil Rights has published a memorandum which revokes sexual discrimination protections for LGBTQ+ students under Title IX.

In June 2020, the US saw a radical shift in how LGBTQ+ individuals were legally protected from sexual orientation and gender identity discrimination.

Last year’s Supreme Court ruling, Bostock v. Clayton County, fell under the rights of Title VII of the Civil Rights Act of 1964, which extended rights to LGBTQ+ workers to protect them against any form of employment discrimination. Title VII workplace discrimination prohibits any discrimination on the grounds of race, sex, religion or national origin.

After the success of the landmark case, questions around Title IX protections and how they apply to LGBTQ+ students arose. It was shortly determined by the Supreme Court that “sex”, under Title VII, should be interpreted to include LGBTQ+ individuals.

“The answer is clear,” Associate Justice Neil Gorsuch said. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.”

As the LGBTQ+ specifics of Title VII fell under speculation, a wider political conversation around LGBTQ+ rights for similar rulings began, including Title IX.

On Friday (8 January), new guidance was presented by the Department of Education Office of Civil Rights which states that LGBTQ+ students are not included in the entire protections of Title IX.

It was stated that the Office of Civil Rights should take consideration of specific cases of discrimination under the Title IX civil rights law. In LGBTQ+ cases, this means “sex” should be interpreted as “biological sex”, specifically “male” or “female”.

Title IX  protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. However, the ruling holds exceptions which includes “sex-separate activities” and “intimate facilities” separately provided on the basis of biological sex or for members of each biological sex.

This Title regulation means schools are permitted to maintain certain facilities e.g. gendered bathrooms for male and female students. Due to this principle, if a transgender student was informed, they could not use a bathroom facility of their choosing, but one suited to their biological sex, it would not qualify as discrimination.

In response to the newly published memorandum, Human Rights Campaign president Alphonso David condemned the guidance:

“In her final moments at the Department of Education, Secretary Betsy DeVos prioritized punishing LGBTQ students. The memorandum refusing to apply Bostock to federal education law is unconscionable and legally flawed,” the statement reads.

“Over the last four years, Secretary DeVos has repeatedly attacked the LGBTQ community — especially transgender students — leaving an egregious record of recruiting anti-LGBTQ extremists, making it difficult for survivors of sexual assault to receive justice, and rescinding guidance to schools on their obligations to transgender students.”

The Department of Education Office of Civil Rights’ interpretation of Title IX are not expected to be upheld under the Biden Administration.

With President-elect Joe Biden to be inaugurated in the coming weeks, it is expected that Secretary Designate Miguel Cardona, who will take over the education department, will rescind the anti-LGBTQ+ guidance.